The case M (Children) (Non-Hague Convention State): I know I’ve said it here before, but decisions concerning the movement of children to countries that do not have any legal arrangements in place regarding their return to the UK must be amongst the most difficult that our judges have to face. The possibility of the child not being returned, and the inability of the other parent to take legal steps to secure their return, must weigh heavily in the decision-making process.
For the sake of simplicity, I will refer to countries that do not have any legal arrangements in place regarding the return of children to the UK as ‘non-Convention states’, as they are not signatories to either the 1980 Hague Child Abduction Convention or the 1996 Hague Child Protection Convention.
In the recent Court of Appeal case M (Children) (Non-Hague Convention State) the court had to consider the possibility of both parents taking the children to two different non-Convention states.
The background of the case was as follows.
The mother is a national of Qatar, and the father is a national of the United Arab Emirates (UAE). Dubai is, of course, one of the seven emirates comprising the UAE.
The parties married in 2012. They have two young children (unless I’ve missed it, their ages are not stated in the judgment).
The family home was in Dubai. However, in 2016 it was agreed that the mother and children should live in England, where it was believed that the special needs of one of the children would be best met. The father remained in Dubai but travelled to England frequently.
The marriage broke down at the end of 2016. Divorce proceedings took place in both England and Dubai.
In December 2017 the mother took the children to Qatar, with the father’s agreement. However, relations between the parents broke down and in January 2018 the mother made an urgent application for a prohibited steps order, following the father making threats to remove the children from England.
Since then the movement of the children to Qatar and Dubai has essentially been regulated by the court. It should be said that the court had the benefit of expert evidence which clearly indicated that an English court order relating to the children would be neither recognised nor enforced in a court in the UAE or Qatar.
Risk of abduction
In June 2019 His Honour Judge Levey, sitting as a Deputy High Court Judge, gave the mother and the father permission respectively to take the children to Qatar and Dubai, for the purpose of holidays (both parents had objected to the other having permission, because of what they each said was the risk that the children would not be returned to England). The order provided that before the children would be permitted to travel to those states, written agreements must have
“been lodged and made into orders of the UAE court and the Qatar court”.
The mother appealed, contending that the judge was wrong to require an order to be obtained in Qatar as a condition for her being permitted to take the children there, and was wrong to permit the father to take the children to Dubai at all, because of the risk of abduction and the inadequacy of the proposed order in Dubai as a safeguard against that risk.
Giving the leading judgment of the Court of Appeal Lord Justice Moylan found that Judge Levey did consider the relevant issues when deciding whether the children should be permitted to travel to Qatar and/or Dubai. Whilst he had found that the risk of the mother not returning the children from Qatar was low, there was “still a risk”. In relation to the father, the judge was entitled to conclude that an order in Dubai was a sufficient safeguard against the risk of abduction.
Accordingly, the mother’s appeal was dismissed.
The full judgment on the case M (Children) (Non-Hague Convention State) can be found here.
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